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The State Supreme Court has shot down a lawsuit brought by Kemper Freeman, and former State Sen. Jim Horn, among others, to stop East Link light-rail from coming across the Interstate 90 bridge.

The lawyers for Freeman and Horn argued in hearings last September that the decision to convert the two center lanes into light-rail tracks was unlawful, as any transfer of lanes away from use by cars for public transit would be an illegal use of motor vehicle and gas tax funds that were spent on the bridge. Additionally, their attorneys questioned the constitutionality of a $250,000 appraisal study of the lanes from the motor vehicle fund, which is built through license fees and vehicle taxes.

The court decided that it could not grant Freeman and Horn's group a favorable judgment because the action they wanted was too general. The court maintained that they could not side with Freeman's group because doing so would be to order representatives to follow the constitution, something the court already assumes they do. Furthermore, the appraisal, one of the petitioners' main points, has already been complete.

"Even assuming that expending money for the purpose of valuing these traffic lanes runs afoul of the constitution, the undeniable fact is that the action has been taken," Judge Gerry Alexander wrote. "Asking us to bar the named officials from expending the funds now is a bit like asking us to put the genie back in the bottle."

Stopping the project now, Alexander continued, would severely impact other organizations that are not a part of this suit.

Horn said the ruling doesn't exactly close the door on the issue. The court didn't rule on the constitutionality of the actions, but rather refused to issue a ruling to stop the project, Horn said.

"If anybody ought to be uncomfortable about this decision it's Sound Transit. They're faced with a major proposal in front of citizens and the question of constitutionality is still up in the air," he said.

Horn did not say whether or not he, Freeman and the other petitioners in the suit would build another legal challenges, but he did acknowledge that they were speaking with their attorneys about their options.

In the September hearings, WSDOT and Sound Transit cited a constitutional right to sell, or transfer, highway lands. They argued no misuse of motor vehicle funds occurred because Sound Transit planned to replenish all state investment on the I-90 center lanes. Sound Transit will also pay for a $150 million construction project adding one car pool lane to each side of land-locked portions of I-90, which will mitigate the loss of the two center express lanes.

Sound Transit and WSDOT argued that the $250,000 for appraisal was not an improper expenditure. It falls within a 65-year-old WSDOT policy to pay for appraisals out of the motor vehicle fund, so it can be reimbursed later on, state attorneys argued in the case.

Judges James Johnson and Richard Sanders were the only dissenters among the nine judges who participated in the case. In their dissent opinion, they held up the claim that motor vehicle funds are constitutionally tied to highway uses, which do not include public transit. They cited cases in the past where the courts had denied the payment of studies out of the motor vehicle fund. They were also unswayed by Sound Transit's plan to pay back all costs.

"Constitutional prohibitions on the legislature's power to spend money equally apply to its power to lend money," Johnson wrote."The fact that Sound Transit claims an intention to reimburse the (motor vehicle fund) for the expenditure provides no constitutional justification for the expenditure in the first place."

Voters passed a ballot measure to fund light-rail out to the Eastside and other areas around Seattle in 2008. Johnson wrote that those same voters will be alarmed by the court's decision to allow gas and motor vehicle taxes to be spent on different uses, representing a slippery slope of what dedicated money will pay for.

"Gas taxes have continued to rise, and license fees, though limited by initiative, raise millions of dollars for the state," he wrote. "The people have tolerated or authorized such taxes in the past predicated on the constitutional promise that the revenues collected by the state through such taxes and fees will be used exclusively for highway purposes."

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